Sunday, January 30, 2000

BENCHMARKS


Cases show 4th Amendment's limits, power

BY BEN L. KAUFMAN
The Cincinnati Enquirer

        Two recent decisions illustrate restraints that the Fourth Amendment places on local police.

        A reaction to the freedom with which British authorities entered and searched colonists' homes, the Fourth Amendment is still a bulwark against arbitrary police stops and searches. It says:

        “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

        Interpreting those 18th century phrases can be vexing for officers and second-guessing courts.

        One of the most recent cases involved a “chop shop” probe by Kentucky State Police in London.

        Officers suspected proprietors were dismantling stolen vehicles and reassembling them into “new” vehicles for sale with phony identification numbers.

        Faced with damning evidence, the defendants said the searches were unconstitutional, and U.S. District Judge Jennifer B. Coffman agreed. She said prosecutors could not use the evidence because all three search warrants — issued by a state judge based on police affidavits — lacked probable cause:

        • The first warrant relied on insufficient independent police investigation and an anonymous informant whose reliability was not established.

        • The second warrant was short on facts, and the second and third warrants were tainted because each relied on the first and its invalidated search.

        In a 3-0 opinion, Judges Gilbert S. Merritt, Eugene E. Siler Jr. and Sandra S. Beckwith reversed Judge Coffman's decision.

        They said prosecutors could use the evidence “because the information provided by the confidential informant was corroborated by other information which together was sufficient to establish probable cause.”

        The second case arose from what 6th Circuit Judge Nathaniel R. Jones called “a battle in the "war on drugs' that the government lost because it failed to abide by one of the key rules of engagement.”

        In that encounter in southeastern Ohio, deputies violated the “knock-and-announce” rule that judges have derived from the Fourth Amendment.

        That confrontation began when a confidential informant told John R. Hull, Pike County chief deputy, that Robert Dice was using lots of electricity at his house to grow marijuana.

        Subpoenaed records showed that Mr. Dice's utility bills were 10 times the average of nearby residences, and Deputy Hull saw nine roof vents and two guard dogs when he checked out the house.

        An agent of the federal Drug Enforcement Administration produced a thermal image of the home using an infrared sensor, and it was consistent with marijuana grow lights.

        A Pike County judge heard all of that and issued a search warrant.

        That same day, deputies raided Mr. Dice's home. One knocked, announced his purpose, waited a “few” seconds, and broke down the door.

        Deputies seized more than 1,900 marijuana plants and equipment and fertilizer needed for indoor cultivation.

        Mr. Dice invoked the Fourth Amendment and asked U.S. District Judge John Holschuh to bar the evidence from court.

        The judge agreed, saying the search warrant was valid, but deputies did not give Mr. Dice a reasonable opportunity to respond before breaking into his home.

        Exceptions to the knock-and-announce rule allow that kind of rush, but none was present, Judge Holschuh said. There was no suspicion Mr. Dice was armed, deputies knew or suspected there was too much evidence to destroy, and hearing Mr. Dice's movements in the house and barking dogs did not create probable cause.

        On appeal, the Justice Department conceded the “scant amount of time between its knock and entry rendered the entry unreasonable under the Fourth Amendment.”

        However, government lawyers said that error should not deny them the evidence in an otherwise valid search with a valid warrant.

        Put another way, the Justice Department asked the 6th Circuit to create a new policy, one saying that the exclusionary rule should not apply when officers have a valid warrant, knock and announce their presence, but fail to wait a reasonable time before breaking into a residence.

        Judges Jones, R. Guy Cole Jr. and Ronald Lee Gilman rejected the government argument, saying deputies' rush ruined the prosecution.

        Writing for the court, Judge Jones recalled the virtues of the knock-and-announce rule: It reduces the potential for violence to officers and occupants of a home being raided, it curbs needless property destruction and it protects individuals' right to privacy at home.

        Judge Jones also expanded on Judge Holschuh's review of exceptions that relieve officers of the knock-and-announce requirement:

        • People inside the home know the officers' authority and purpose.

        • Officers have a justified belief that someone inside the home is in imminent peril of bodily injury.

        • Officers have a justified belief that people inside know it's a raid and are trying to escape or destroy evidence.

        When none of those exceptions is present, officers must wait a “reasonable” time before kicking in a door. Generally, that means giving the resident time to open the door.

        “The government's argument here is no more than an attempt to circumvent this clear and binding precedent that knock-and-announce violations require suppression,” Judge Jones wrote.

        The evidence may not be used.

       



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